Sindh High Court (SHC) Tuesday set aside the award of contract for the monitoring of bonded cargo transportation to NLC Construction Solution Private Limited (NCSPL). A division bench of SHC comprised of Justice Muhammad Ali Mazhar and Justice Agha Faisal ordered the Federal Board of Revenue (FBR) to initiate a de novo tendering process for the award of contact in accordance with the law.
The FBR should start this process within a period of one month, in which all eligible parties may participate, an order of SHC stated in two petitions, filed by Assetlink Asia (Pvt) Ltd and E-Movers (Pvt) Ltd. The petitions, which made federation, FBR, NCSPL and others challenged the tenders process and the consequential award of contract by FBR for monitoring of bonded cargo transportation from the point of customs entry to the point of customs existing in the country to NCSPL.
Petitioners submitted before the court that conferment of such a contract was a result of misprocurement, defined under the public procurement laws. Court observed that belated unjustified parachuting of NCSPL into the bidding process, the manner adopted for modification of evaluation criteria post opening bids and the implementation of such modification can't considered to be transparent and/ or in public interest.
The tender process culminating into the contract is determined to be in manifest violation of the law, hence the contract is set aside, court ruled in the order. Court stated that misprocurement has been defined in Section 2(h) of the Public Procurement Regulatory Authority Ordinance 2002 to mean public procurement in contravention of any provision of said ordinance, any rules, regulations, orders or instructions made thereunder or any other law in respect of, or relating to public procurement.
Court observed that any unauthorized breach of rules shall amount to misprocurement and stated that adherence to the procurement laws couldn't demonstrate before it. The petitioner, ie, Assetlink Asia contended that petitioner being a constituent of one of the bidders was aggrieved on account of such the contract have been awarded through misprocurement.
Second petitioner challenged the same contract despite not having participated in the process on the grounds of public interest, being involved in this matter. Court clubbed the two petitions for being identical.
Counsel for FBR contended that petitions were misconceived whereas counsel for NCSPL sought the rejection of the petitions.
Court, however dismissing the petition of Assetlink issued orders in the petition of E-Movers on the ground of public litigation and ordered the FBR to initiate the tendering process by setting aside the award of contract to NCSPL.